What are we going to do to stop this? I would like now to be practical. I think first we have got to attack this need, this illiteracy, this poverty of education. Second, I think we have got to stop the inversion of the American principle which was, as I grew up and was taught to believe, that people should be treated as individuals, not as groups. We have got to build-as you yourself have said, Mr. Chairman, in your considerable effort in the Congressional Record to which you pointed-on the principle of those Supreme Court caseswhich are very current, by the way. To use the word of Teamster repeated in the Furnco case "Some people are less favorably treated than others because of their race, color, religion, or national origin." That is the problem of discrimination; that is the issue of civil rights. I should like, therefore, to see Congress legislate-you do not really need a constitutional amendment, in my judgment, sir, for this purpose. Have Congress legislate its determination, its finding, its will that in all of the antidiscrimination and civil rights legislation enacted to date or subsequently this legislation shall be interpreted in accordance with the principle that the Supreme Court of the United States set out in the recent case-the recent case-of Washington v. Davis arising in the District of Columbia and dealing with the Washington, D.C., police force. The case arose under 42 U.S.Č. 1981, the Civil Rights Act of 1975. This is what the Supreme Court said-and I wish Congress would say it applies to all of its legislative purposes-"The invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.' Mr. Chairman, those were the words of the Supreme Court of the United States dealing with a test to be applied to the Washington Police Department where there was disparate impact. They upheld the test because it was not deemed to have been enacted for racially discriminatory purpose. That is what is required urgently from this Congress, and all that is required, in that sense, is legislation saying how title VII and title VI and the other titles shall be interpreted. Third, the executive should weed out all invidious classifications in the host-there are tons of regulations that have been built up in the name of affirmative action but have nothing to do with it. They are preferential treatment plans and racially motivated and gender-motivated regulations. Fourth, appointments to agencies should be of people who believe in what the NAACP pronounced until the end of the Brown v. Topeka cases, staffing agencies with servants committed to human equality and equal protection of the law. Mr. Chairman, human equality and equality protection of the law is the banner under which I and all of my colleagues in the civil rights movement marched proudly, until a new and strange device of preference based on race was unfurled. But the Constitution cannot be set aside by Congress, the courts, or the people of good will. I say to such people: "God bless you." But they sometimes, in their zeal, destroy that which is most fundamental in this society, and that is the Constitution of the United States, exactly as Thurgood Marshall urged it to be inter 1254 WAYNE LAW REVIEW [Vol. 26 ceipts that year, only about 16.6 billion dollars, or 0.65% of the total, were realized by minority-owned businesses. 116 The absence of blacks in the top management of American corporations needs no documentation. Blacks are disproportionately underrepresented in "white collar" jobs, 11 and even in the "blue collar" category, where the distribution of blacks and whites is more equal, blacks are disproportionately concentrated in "laborer" jobs and are very underrepresented in "crafts" jobs." 118 The lack of the equal participation of blacks in the economic system directly correlates with the condition of racial economic inequality that exists in this nation. There is a substantial “income gap” between blacks and whites, 119 a much higher incidence of unemployment and underemployment among blacks, 120 and a much higher proportion of black families than white families living below the federallydefined poverty level.121 Racial preference in the economic area involves making structural changes in the way that particular forms of economic activity operate to increase black participation in those activities. In United Steelworkers of America v. Weber, 122 last Term's "affirmative action" case, the racial preference was directed toward increasing the representation of blacks in the skilled crafts. In Fullilove v. Klutznick, 123 this Term's "affirmative action" case, the preference was directed at improving the position of minority business enterprises by giving them a 10% share of public works projects financed by federal grants. 124 Since Weber dealt with a voluntary racial preference contained in an in-service training program established pursuant to a collective bargaining agreement between the employer and the union, the issue was whether the program was violative of Title VII, and the Court held that it was not. 125 In Fullilove, the constitutionality of the minor 116. 122 Cong. Rec. 13866 (1976) (statement of Senator Javits); 122 Cong. REC. 34754 (1976) (statement of Senator Glenn). 117. See Sedler, Beyond Bakke, supra note 6, at 138 nn.22-23. 118. Id. 138-39 nn.24-25. The exclusion of blacks from the crafts on racial grounds has been so clearly demonstrated as to now be a subject of judicial notice. United Steelworkers of America v. Weber, 443 U.S. 193, 198 n.1 (1979). 119. See Sedler, Beyond Bakke, supra note 6, at 139 nn.26-27. 120. Id. 138 nn.21-22. 121. Id. 139 n.26. 122. 123. 124. 1977). 443 U.S. 193 (1979). 48 U.S.L.W. 4979 (1980). Public Works Employment Act of 1977, 42 V.S.C. § 6705(f)(2) (Supp. I 125. The employer, under the collective bargaining agreement, was to establish an in-plant training program for skilled craft workers. The trainees were to be drawn from the employer's work-force, and half of the trainees were to be black. In effect, separate racial seniority lists were established to determine eligibility for admission to the program. The program was challenged by an excluded white worker who had greater plant seniority than some of the included black workers. The employer and the 1980] RACIAL PREFERENCE AND THE CONSTITUTION 1255 ity business enterprise "set aside" was sustained by the Second Circuit on the ground that it was designed to remedy past discrimination in the awarding of governmental construction contracts, 126 and the remedying of past discrimination was the essential basis of the various opinions upholding the "set aside" when the case reached the Supreme Court, 127 I want to approach these cases from the perspective of the societal interest in the equal participation of blacks in the economic system. In order to bring Weber into the constitutional ambit, assume that the federal government required the employer, as a federal contractor, to adopt the program in order to be eligible to receive federal contracts. 128 As I have discussed elsewhere, the government, as a contractor, can assert an interest in having the equal participation of racial minorities in the "governmental market."129 But leaving this aside, I want to discuss the societal interest that is advanced by requiring that black workers be brought into the skilled crafts and by giving black business enterprises a share of governmental construction contracts. These actions, as we have seen, represent an effort to make structural changes in the operation of particular forms of economic activity to increase black participation in that activity. The ultimate objective of such efforts is to alleviate the condition of racial economic inequality that exists in this nation, reflecting the lack of equal participation of blacks in the economic system. The training of blacks as skilled workers will contribute to increasing the income of blacks as a group. Similarly, since experience indicates that black business enterprises are likely to employ proportionately more blacks than are white business union did not admit that there had been past discrimination against blacks in the employer's workforce. The Court held that the program was not violative of Title VII on the ground that Congress did not intend to prohibit "all voluntary, private, raceconscious efforts to abolish traditional patterns of racial segregation and hierarchy [in employment.]" United Steelworkers of America v. Weber, 443 U.S. at 204. It may be noted that the result of the employer's “affirmative action" program here was to open new opportunities for white workers in the plant as well as black workers, since prior to the institution of the program, the employer had recruited all of its craft workers from outside of the plant. Id. 198-99. As to gains to whites from programs initially instituted for the benefit of blacks and from black efforts to achieve equality, see the discussion in Bell, supra note 40, at 14-16. 126. Fullilove v. Kreps, 584 F.2d 600 (2d Cir. 1978), aff'd, 48 U.S.L.W. 4979 (1980). 127. See note 139 infra. 128. See Exec. Order No. 11, 246, 3 C.F.R. § 339 (1965) as amended by Exec. Order No. 11,375, 3 C.F.R. 1978 Comp. pp. 230-34. In Weber, the district court found that one of the reasons motivating the adoption of the racially-preferential inplant training program was Kaiser's concern for meeting the "affirmative action" goal it had established pursuant to E.O. 11246. Weber v. United Steelworkers of America, 415 F. Supp. 761, 764-65 (E.D. La. 1976), aff'd, 563 F.2d 216 (5th Cir. 1977), rev'd, 443 U.S. 193 (1979). 129. Sedler, Beyond Bakke, supra note 6, at 160-62. 1256 WAYNE LAW REVIEW [Vol. 26 enterprises, 130 the continued survivability of these enterprises will likewise increase the income of blacks as a group.' 131 In addition, the increase in the number of black craft workers and viable black-owned businesses may have the effect of reducing black unemployment and underemployment. 132 The question, then, becomes whether the government can reason. * ably conclude that there is a societal interest in alleviating the condition of racial economic inequality that exists in this nation. Some guidance in this regard can be obtained from the Court's decision in Weber and from its decisions interpreting Title VII generally. These decisions indicate that when Congress enacted Title VII, it recognized that there was a societal interest in blacks having a “fair share" of the available jobs in an employer's workforce, 133 so that in time there might be an end to racial economic inequality, resulting in large part from years of rampant racial discrimination in employment. As the Court stated in Weber: " Congress' primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with "the plight of the Negro in our economy." Before 1964, blacks were largely relegated to "unskilled and semi-skilled jobs." Because of automation the number of such jobs was rapidly decreasing. As a consequence, "the relative position of the Negro worker [was] steadily worsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white race; in 1962 it was 124 percent higher."[134] Congress considered this a serious social problem. Congress feared that the goals of the Civil Rights Act - the integration of blacks into the mainstream of American society - could not be achieved unless this trend were reversed. And Congress recognized that that would not be possible unless blacks were able to secure jobs "which have a future." . . . Accordingly, it was clear to Congress that “[t]he crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them," and it 130. Blacks are more likely to be aware of jobs that are available in black-owned enterprises and are more likely to be hired by those enterprises. 131. There will also be a multiplier effect insofar as those enterprises deal with other black enterprises as suppliers and/or customers. 132. As Senator Brooke observed: "[M]inority businesses' workforces are principally drawn from residents of communities with severe and chronic unemployment.... Only with a healthy, vital minority business sector can we hope to make dramatic strides in our fight against the massive and chronic unemployment which plagues minority communities throughout this country." 123 CONG. REC. S. 3910 (Daily ed. Mar. 10, 1977) (statement of Senator Brooke). 133. See Sedler, Beyond Bakke, supra note 6, at 148. 134. As of 1976, it was more than double. Sedler, Beyond Bakke, supra note 6, at 138 n.21. 1980] RACIAL PREFERENCE AND THE CONSTITUTION 1257 was this problem that Title VII's prohibition against racial As the above discussion indicates, racial economic inequality, in all its manifestations, is a "serious social problem," and "integration of blacks into the mainstream of American society" cannot be achieved until race is no longer associated with low-income status and until there is no longer racial economic inequality in American life. Racial economic inequality is perhaps the most enduring and persistent consequence of the social history of racism, 136 and it can only be ended by making structural changes in economic activity to increase black participation in that activity and bring about equal participation of blacks in the economic system. 17 There is a strong ocietal interest in ending the racial economic inequality that exists in today's American society which should render constitutional governmental efforts to bring about equal participation of blacks in the economic system. 138 It is my submission, therefore, that there is a strong societal interest in bringing about equal participation of blacks in a number of important aspects of American life: the institutions of government, the "power professions," and the economic system. The use of racial preference to advance the equal participation objective, therefore, advances a valid and substantial governmental interest and should be held to be constitutional. 139 135. United Steelworkers of America v. Weber. 443 U.S. at 202-03 (citations omitted). 136. Black family income, for example, has never exceeded 60% of white family income, Sedler, Beyond Bakke, supra note 6, at 139, and the other indicators of economic inequality have likewise persisted over the years. See generally U.S. COMM. ON CIVIL RIGHTS, SOCIAL INDICATORS OF EQUALTY FOR MINORITIES AND WOMEN (1978) 137. This point was emphasized in the debates over the minority business enterprise set aside. According to Representative Mitchell: "We cannot continue to hand out survival programs for the poor in this country. We cannot continue that forever. The only way we can put an end to that kind of a program is through building a viable minority business system." 123 Cong. Rec. H. 1437 (daily ed. Feb. 24, 1977) (statement of Representative Mitchell). As Representative Biaggi concluded: "This amendment will go a long way toward helping to achieve [economic] parity and more importantly to promote a sense of economic equality in this Nation." Id. (statement of Representative Biaggi). 138. Because these efforts adversely impact upon the economic interests of individual whites, the courts will carefully scrutinize the appropriateness of the means used But the key to appropriateness is the reasonableness of the preference, and a reasonable racial ratio, such as the 50-50 ratio involved in Weber, which is intended to eliminate a manifest racial imbalance," United Steelworkers of America v. Weber, 443 U.S. at 208, or the 10% set aside involved in Fullilove, clearly satisfies this test. Full:love v. Klutznick, 48 U.S.L.W. at 4889-90 (Burger, C.J.), 4997 (Powell, J.), 4999 (Marshall, J.). 139. Since Fullilove v. Klutznick, 48 U.S.L. W. 4979 (1980), was decided after this article had gone to press, there was no opportunity to incorporate a discussion of the |